Allowed

Ajay Singh v. State of U.P. Thru. Its Addl. Chief Secy. Home Dept. Lko. and 2 Others

Allahabad HC23 Jan 2024/6281/2022

Case brief

AI extract

What is this about?

The court quashed dismissal and appellate orders against a peon for unauthorized absence because the departmental inquiry lacked a fixed hearing date, no oral evidence was led by the establishment, and the only witness was the preliminary inquiry officer. The court ordered reinstatement and salary payment.

What did the court decide?

Impugned orders quashed; petitioner reinstated in service forthwith; petitioner to be paid current salary; 50% salary awarded if no fresh proceedings or terminal punishment.

Ajay Singh Vs State of U.P. Thru. Its… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:6227

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Court No. - 25

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Case :- WRIT - A No. - 6281 of 2022

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Petitioner :- Ajay Singh Respondent :- State of U.P. through its Additional Chief Secretary, Home Department, Lucknow and others Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C.

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Hon'ble J.J. Munir,J.

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Parties have exchanged affidavits.

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Admit.

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Heard forthwith.

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Heard Mr. Rakesh Kumar Singh, learned Counsel for the petitioner and Mr. Sandeep Chandra, learned Standing Counsel appearing on behalf of the respondents.

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This petition is directed against the order dated 27.05.2020, dismissing the petitioner, an Orderly-Peon in the Provincial Armed Constabulary, from service and the appellate order dated 23.02.2022 affirming the punishment. The petitioner was proceeded with against on a charge of unauthorised absence for a period of 289 days, 16 hours and 30 minutes. A preliminary inquiry appears to have been conducted against him, on the basis of which, a charge-sheet dated 16.10.2019 was issued. The petitioner put in his defence by means of a reply to the charge-sheet, that he did on 30.10.2019.

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Shorn of the details of defence that the petitioner took, the short point argued by learned Counsel for the petitioner is that no date, time and place of inquiry was fixed and no oral hearing was done, in that, that no witnesses were examined on behalf of

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the Establishment to prove the charge. There is an averment in paragraph No. 13 of the writ petition, which says that no date, time and place for holding the inquiry was fixed or intimated to the petitioner and no oral evidence led on behalf of the Establishment.

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In paragraph No. 14 of the counter affidavit filed on behalf of the State, the contents of paragraphs Nos. 13 and 14 of the writ petition have, no doubt, been denied. It is said that in the departmental inquiry, the Presiding Officer recorded the testimony of the officer holding the preliminary inquiry, one Nand Lal Yadav, a Shivir Pal . It is, no doubt, true that the evidence of Nand Lal Yadav, who, in the testimony, is described as the Reserve Inspector, Police Lines, Balrampur, has been recorded and the petitioner has declined to cross-examine him, but what this Court finds is that this witness is hardly a witness of fact regarding the charge sought to be brought home by the Establishment. He is an officer in the Establishment, who held a preliminary inquiry, on the premise of which, the charge-sheet here was issued. He, in his testimony, has clearly said that he held a preliminary inquiry, took down the statements of the delinquent as well as the other witnesses. This witness has also said that from the evidence that he collected during the preliminary inquiry, he found that the petitioner (delinquent) was absent for a period of 200 days from duty without permission or leave. He has also stated that he found the petitioner, therefore, guilty. Now, the said witness is the officer who held a preliminary inquiry into the allegations and found it worth proceeding. This witness is, apparently, not a witness of any fact relevant to the charge. He is not the person who has spoken of his own knowledge about the petitioner's unauthorised absence from duty. He has said that he has put in a preliminary inquiry report, collecting evidence from others for

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the purpose of a decision if the petitioner is to be chargesheeted and proceeded with. This witness is certainly not a witness of any kind of fact, on the basis of whose testimony, any document, that the Establishment might seek to rely on, can be proved. It is well settled that in departmental proceedings, the burden is on the Establishment to prove the charge, even if the delinquent does not appear. The charge has to be proved by preponderance of probability and, in any matter, where the charge is serious enough to entail the imposition of a major penalty, the charge has to be established by leading both oral and documentary evidence. The Inquiry Officer has to detach himself from his regular duties towards the Establishment and sit as an impartial arbiter, before whom, evidence is led by the Establishment through a Presenting Officer to prove the charge. After the evidence, both oral and documentary is led, the delinquent has a right to cross-examine the Establishment witnesses. Once that is over, the delinquent has a right to lead his defence, if he so chooses. He may then produce documents or witnesses in his defence. All this does not appear to have been done here.

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A reading of the inquiry report alone would show that the Inquiry Officer has gone through idle papers during the routine of his work and the only testimony that he recorded was of the officer himself holding the preliminary inquiry. We have already noticed that he is not any kind of a witness of fact about the charge. He was speaking on hearsay of what others told him during the preliminary inquiry. The principle that the Establishment have to prove the charge in the first instance in a matter involving the imposition of a major penalty by leading both documentary and oral evidence before an inquiry formally convened, is well established, going by the holding of the Supreme Court in State of Uttar Pradesh and others v. Saroj

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Kumar Sinha, (2010) 2 SCC 772, Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal an another, 2018 (9) ADJ 397 (DB) (LB), Smt. Karuna Jaiswal v. State of U.P., 2018 (9) ADJ 107 (DB)(LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB)(LB) .

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In this view of the matter, this Court is of opinion that the impugned orders here cannot be sustained. However, it will be open for the respondents to proceed afresh from the stage of the charge-sheet, where they may examine evidence in the manner indicated in this judgment. Thereafter, fresh orders may be passed in accordance with law.

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In the result, this writ petition succeeds and shall stand allowed . The impugned orders dated 27.05.2020 and 23.02.2022 are hereby quashed . The petitioner shall be reinstated in service forthwith and paid his current salary. In the event, the respondents elect to pursue fresh proceedings, the question of arrears shall abide by the final result of such proceedings. In the event, however, the respondents do not elect to pursue fresh proceedings, the petitioner shall be entitled to 50% of his salary. In the event, no proceedings are taken, or if taken, do no lead to a result, where the petitioner is, again, inflicted a terminal punishment, the petitioner shall be entitled to continuity of service and other consequential benefits.

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There shall be no order as to costs.

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Order Date :- 23.1.2024 I. Batabyal

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(J.J. Munir, J.)

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Digitally signed by :- DEEPAK KUMAR PANDEY High Court of Judicature at Allahabad, Lucknow Bench

Ajay Singh v. State of U.P. Thru. Its Addl. Chief Secy. Home Dept. Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Ajay Singh v. State of U.P. Thru. Its Addl. Chief Secy. Home Dept. Lko. and 2 Others

Case brief

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What did the court decide?

What the court decided

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